Water rights case begins

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The first day of the NZ Maori council case seeking a halt to the sale of state owned power companies began in the High Court in Wellington today.

At the High Court this morning, the NZ Maori Council, the Pouakani Trust and the Waikato River and Dams trust began their case seeking a judicial review of the decision to remove four state-owned assets from the State Owned Enterprises Act, and their subsequent transfer into the Mixed Ownership Model (MOM) regime in anticipation of their partial privatisation. The claimants are seeking to have a court issued injunction declaring that the transfer of the assets out of the SOE regime was a breach of the principles of the Treaty of Waitangi, and thus illegal.

The lawyer for the Pouakani and Waikato River Trusts began her address to the judge this morning. She was continually challenged to explain why it was necessary in law for the crown to address Maori residual rights in water in advance of the sale. The judge said that as far as he could see, he did not understand what difference it made if it was a public or private ownership model for the meeting of Maori claims for property rights. He said that these rights were statutory rights, not Treaty rights, and were thus already protected.

The judge went on to say that the government could legislate under the Resource Management Act (RMA) to charge for the use of water in order to compensate Maori for use of water. He said that the commercial environment changes for business all the time, and that businesses must cope with such change - that would be the case should a charge on water eventuate. Moreover he said, there would be a host of different groups - not just Maori - who would have some interest that would have to be addressed by such a regime.

Much of the exchange was esoteric and difficult to follow absent the 10 'bundles' of submissions, case law and affidavits that the legal teams were working from.

However, from a laypersons view, there seem to be several glaring issues which one can only hope will be addressed by counsel over the coming days. First, Maori have sought to have these rights recognised for more than 100 years, largely without success due to the Crown's unwillingness to deal with the issue. Maori rights have been usurped for the crown's profitability of hydroelectric dams. How can it be legal to sell something the crown doesn't own?

Moreover, the existence of international 'free' trade agreements/investor contracts seriously constrains the ability of the NZ government to legislate to recognise the special and particular rights of Maori in two respects. First, companies must by law maximise returns for shareholders thus anything that could limit that profitabilty would be in contravention of the companies obligation to its shareholders - this is complicated by the fact that the State would remain the largest shareholder, and thus in a conflict of interest.

The second issue is that while in law the NZ state may be able to legislate, the nascent threat of litigation by international capitalists may have the effect of deterring the state from passing any such litigation. Such examples abound in the world of international abitration where corporations need only hint that a lawsuit will proceed if a law or regulation is passed that may impact on their profits. So while that theoretical possibility may exist, in practice Parliament will not address Maori claims because international capital will take revenge.

The case is set down until Thursday, and the submissions of the NZ Maori Council are expected to begin tomorrow (Tues) afternoon. The High Court is open to all.

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